On The Court Mediation

The court mediation is a characteristic lawsuit system of our country in the legal practice. It has been one of the important components of the civil lawsuit system. Not only the legislators and the theoretical circle have attached great importance to it for a long period of time but also mediation has been the dominant operating mode of the civil jurisdiction of the people's court in the practice of judgment of the people's court. The system is full of Chinese characteristics. It is the value target based on"harmony". Because it has the"humanistic"characteristic different from judgment and the system advantages of high efficiency and low cost, it is widely welcome and praised as the"east experience"by the judicial circles of all the countries. It can be said that the system, as an important dispute resolution mechanism, has become the important representation of the civil lawsuit of our country. For a long period of time, most of the civil business cases of our country are settled by mediation. It is favorable to not only the rapid settlement of disputes but also the social stability. It plays the important roles in practice, so mediation becomes the most characteristic system in the civil judgment of our country. However, with the multiple social values, scattered social structure and contractual social relations, not only the limited judicial resources cannot bear the heavy burden brought by the increasing disputes but also the awakening of the party's awareness of subject makes the current mediation system unable to face the requirements for justice and efficiency of society for resolution of disputes, so it causes the calm thoughts of many scholars and many different opinions have been presented. In the judicial practical circle, the great reform of the mediation system is tried. However, the mediation system cannot be better dealt with in both the theory and the practical operation. Therefore, the author analyzes the existing problems, investigates the historical development of the medication ssytem and compare the relevant systems of the other countries and regions according to the present situation of development of the mediation system and then presents some opinioins on perfection of the mediation system so as to be benefical to the reform of the court mediation system at present. The paper is divided into 3 parts.Part 1 is the overview of the court mediation system, dealing with the origin and development of the court mediation system and impacts on the modern court mediation system of our country. In the process of lawsuit in ancient China, the mediation for reconciliation was the common method of the judicial officials. In the Zhou Dynasty in the slavery society, the"post of mediation to resolve the people's difficulties for harmony"was set in the bureaucratic establishments, that is, the official who is specifically responsible for mediating affairs. After the Qin Dynasty, most of the judicial officials pursued the principle of mediation of disputes. In the period of two Song Dyansties, the mediation developed toward the system. In the period of Ming Dyansty and Qing Dyansty, mediation tended to be perfect. It can be said that whoever are officials and common people in all the dynasties took pleasure in using mediation to resolve disputes. The court mediation system of our country had advocated and depended on mediationi in the revolutionary bases for long time since it was founded, so mediation has been in the important and priority status in the civil lawsuit of our country and produced the profound impacts on the civil lawsuit system of our country and even the judgment procedure of the civil cases of our country is called the"mediation dominating judgment mode". The determination of the court mediation system and the parties and judicial persons who take pleasure in using mediation to resolve disputes fully show the impacts and roles of the mediation, a tradition.Part 2 is the knowledge of the mediation systems of the other countries/regions and the comparative analysis with the court mediation system of our country. The court mediation is not the patent of our country. As an advantageous dispute resolution mechanism, its principles are universally applicale. There is also the similar system in the civil lawsuit of the other countries and regions. In fact, the mediation presided by the judge or tentative reconciliation universally existing in the civil lawsuit of the western countries is fundamentally consisstent with the court mediation of our country. Whether it is the country of the continental legal system or the countries of the British and US legal system, it attaches great importance to the dispute resolution mechanism accepted by the parties. Especially since 1960s, the phenomenon of"lawsuit explosion"has occurred to many countries, the courts cannot bear the burdens so that the lawsuit is seriously postponed, and at the same time, the high lawsuit cost has made the common people difficult to approach justice; furthermore, the multiple case types has made judgment difficult to resolve disputes, so many countries are forced to begin the rethinking and reform and have successively built and developed the dispute resolution modes in addition to judgment according to their own situations. Therefore, when we build a judicial sysem, the existing thoughts shall be based on the close relations between the legal mechanism and society as well as dynamic development of the operation of laws, and in the meanwhile, importance shall be attached to the different demands for laws of the social members in the different regions and under the different cultural backgrounds (not the copying of the systems). The autonomy of the social members shall be advocated on the premise of perfecting the legal system. When the principles of justice and fairness of settlement of disputes are advocated, the principles of benefits and efficiency shall be considered. When the civil lawsuit and judgment system is perfected, the multiple mechanisms of settlement of disputes shall be appropriately established.Part 3 is the defects existing in the court mediation system of our country. Most of the problems of the civil judgment modes of our country stem from the"mediation"judgment mode. If we cannot change such a judgment mode from the guiding thoughts and basic structure, it is difficult to prevent the"compulsory mediation"or other phenomena of"beyond-authority doctrines". The judicial policy on mediation of our country goes through a repeated process from negligence to recognition. In the judicial policy, importance is attached to the court mediation, its direct reason lies in that it improves the efficiency and benefits of lawsuit as a whole. With the play given to the unique function of thorough settlement of disputes by the court mediation system, the efficiency and benefits of lawsuits are improved. Although the indispensable advantages of the mediation system are seen from the pragmatic attitude and intrumentalism in the people's court, some reform plans such as"separation of mediation from judgment", use of the lawsuit mediation to replace the court mediation and"reform of the system of combining mediation and judgment", etc. are presented in the theoretical circle for the current defects existing in the court mediation. The author thinks that the mediation system stipulated in the civil lawsuit law of our country does not lose its effects in the modern society of market economy and viewed from legislation, the framework of the court mediation system has been basically perfected and the key lies in the further implementation and revision, so the author agrees with the third opinion and presents some suggestions on how to perfect the court mediation system, for example, set up the mediation procedure before judgment or the court, mediation shall continue penetrating all the stages of judgment, set up the party's acceptable principle, the mediation agreement shall come into effect in the court, assure the party's lawsuit right of equal negotiation, build the remedial measures of defects, establish and assure the judicial reviewing and relief procedure for mediation, etc.